1. The Parties hereby establish a Financial Services Committee. The principal representative of each Party shall be an official of the Party’s competent authorities responsible for financial services set out in Annex 12D.
2. The Committee shall:
(a) supervise the implementation of this Chapter and its further elaboration;
(b) consider issues regarding financial services that are referred to it by a Party; and
(c) participate in the dispute settlement procedures in accordance with Article 12.19.
3. The Committee shall meet annually, or as otherwise agreed, to assess the functioning
of this Agreement as it applies to financial services.
4. The Committee shall report to the Joint Commission on the results of each of its meetings.
Article 12.17. Consultations
1. A Party may request consultations with the other Party regarding any matter arising under this Agreement that affects financial services. The other Party shall give sympathetic consideration to the request. The Parties shall report the results of their consultations to the Committee.
2. Consultations under this Article shall include officials of the authorities specified in Annex 12D.
3. Nothing in this Article shall be construed to require financial regulators participating in consultations under paragraph 1 to disclose information or take any action that would interfere with specific regulatory, supervisory, administrative, or enforcement matters.
4. Nothing in this Article shall be construed to require a Party to derogate from its relevant law regarding sharing of information among financial regulators or the requirements of an agreement or arrangement between financial authorities of the Parties.
Article 1218. Dispute Settlement
1. Chapter Twenty-Three (Dispute Settlement) shall apply as modified by this Article to the settlement of disputes arising under this Chapter.
2. When a Party claims that a dispute arises under this Chapter, Article 23.6 (Request for a Panel) shall apply, except that:
(a) where the Parties so agree, the panel shall be composed entirely of panelists meeting the qualifications in paragraph 3; and
(b) in any other case,
(i) each Party may select panelists meeting the qualifications set out in paragraph 3 or in Article 23.7 (Qualifications of Panelists); and
(ii) if the Party complained against invokes Article 12.10, the chair of the panel shall meet the qualifications set out in paragraph 3, unless the Parties otherwise agree.
3. Financial services panelists shall:
(a) have expertise or experience in financial services law or practice, which may include the regulation of financial institutions;
(b) be chosen strictly on the basis of objectivity, reliability, and sound judgment;
(c) be independent of, and not be affiliated with or take instructions from, a disputing Party; and
(d) comply with the code of conduct to be established by the Joint Commission.
4. Notwithstanding Article 23.17 (Non-Implementation and Compensation), where a
panel finds a measure to be inconsistent with this Agreement and the measure under dispute affects:
(a) only the financial services sector, the complaining Party may suspend benefits only in the financial services sector;
(b) the financial services sector and any other sector, the complaining Party may suspend benefits in the financial services sector that have an effect equivalent to the effect of the measure in the Party’s financial services sector; or
(c) only a sector other than the financial services sector, the complaining Party shall not suspend benefits in the financial services sector.
Article 12.19. Investment Disputes In Financial Services
1. Where an investor of a Party submits a claim under Article 9.16 (Investor-State Dispute Settlement) to arbitration under Chapter Nine (Investment) and the respondent invokes an exception under Article 12.10 as a defense within 120 days following the date the claim is submitted to the arbitration under Chapter Nine (Investment), upon filing of such a defense by the respondent, the tribunal shall refer the matter in writing to the Committee for a decision in accordance with paragraph 2. The tribunal shall not proceed pending its receipt of a decision of such matter by the Committee or a report of such matter by the panel under this Article.
2. In a referral pursuant to paragraph 1, the Committee shall decide the issue of whether and to what extent Article 12.10 is a valid defense to the claim of the investor. Each Party may make oral and written submissions to the Committee regarding such issue. The Committee shall promptly transmit a copy of its decision to the tribunal and to the Joint Commission. The decision shall be binding on the tribunal.
3. Where the Committee has not decided the issue within 60 days following the receipt of the referral under paragraph 1, either Party may, within 10 days thereafter, request the establishment of a panel under Article 23.6 (Request for a Panel) to decide the issue. The panel shall be constituted in accordance with Article 12.18. Each Party may make oral and written submissions to the panel regarding such issue. Further to Article 23.13 (Report of the Panel), the panel shall promptly transmit its final report to the Committee and to the tribunal. The report shall be binding on the tribunal.
4. Where no request for the establishment of a panel pursuant to paragraph 3 has been made within 10 days after the 60-day period referred to in paragraph 3, the tribunal may proceed to decide the matter.
5. Without any prejudice to Article 9.16 (Investor-State Dispute Settlement), the arbitrators of the tribunal shall have expertise or experience in financial services law or practice, which may include the regulation of financial institutions, in the event that the tribunal proceeds to decide the matter in accordance with paragraph 4.
Article 12.20. Definitions
For purposes of this Chapter:
cross-border financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of the Party and that seeks to supply or supplies a financial service through the cross-border supply of such services;
cross-border trade in financial services or cross-border supply of financial services means the supply of a financial service:
(a) from the territory of a Party into the territory of the other Party;
(b) in the territory of a Party by a person of that Party to a person of the other Party; or
(c) by a national of a Party in the territory of the other Party,
but does not include the supply of a financial service in the territory of a Party by an investment in that territory;
financial institution means any financial intermediary or other enterprise that is authorized to do business and regulated or supervised as a financial institution under the law of the Party in whose territory it is located;
financial institution of the other Party means a financial institution, including a branch, located in the territory of a Party that is controlled by persons of the other Party;
financial service means any service of a financial nature. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance), as well as services incidental or auxiliary to a service of a financial nature. Financial services include the following activities:
Insurance and insurance-related services
(a) Direct insurance (including co-insurance):
(i) life;
(ii) non-life;
(b) Reinsurance and retrocession;
(c) Insurance intermediation, such as brokerage and agency; and
(d) Services auxiliary to insurance, such as consultancy, actuarial, risk assessment, and claim settlement services;
Banking and other financial services (excluding insurance)
(e) Acceptance of deposits and other repayable funds from the public;
(f) Lending of all types, including consumer credit, mortgage credit, factoring, and financing of commercial transactions;
(g) Financial leasing;
(h) All payment and money transmission services, including credit, charge, and debit cards, travelers checks, and bankers drafts;
(i) Guarantees and commitments;
(j) Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market, or otherwise, the following:
(i) money market instruments (including checks, bills, certificates of deposits);
(ii) foreign exchange;
(iii) derivative products including, but not limited to, futures and options;
(iv) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(v) transferable securities; and
(vi) other negotiable instruments and financial assets, including bullion;
(k) Participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
(l) Money broking;
(m) Asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository, and trust services;
(n) Settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(o) Provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services; and
(p) Advisory, intermediation, and other auxiliary financial services on all the activities listed in subparagraphs (e) through (o), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of that Party;
investment means investment as defined in Article 9.18 (Definitions), except that, with respect to loans and debt instruments referred to in the Article:
(a) a loan to or debt instrument issued by a financial institution is an investment only where it is treated as regulatory capital by the Party in whose territory the financial institution is located; and
(b) a loan granted by or debt instrument owned by a financial institution, other than a loan to or debt instrument issued by a financial institution referred to in subparagraph (a), is not an investment;
for greater certainty, a loan granted by or debt instrument owned by a cross-border financial service supplier, other than a loan to or debt instrument issued by a financial institution, is an investment for purposes of Chapter Nine (Investment), if such loan or debt instrument meets the criteria for investments set out in Article 9.18 (Definitions);
investor of a Party means a Party or state enterprise thereof, or a person of a Party, that attempts to make, is making, or has made an investment in the territory of the other Party, provided, however, that a natural person who is a dual national shall be deemed to be exclusively a national of the State of his or her dominant and effective nationality;
new financial service means a financial service not supplied in the Party’s territory that is supplied within the territory of the other Party, and includes any new form of delivery of a financial service or the sale of a financial product that is not sold in the Party’s territory;
person of a Party means person of a Party as defined in Article 1.4 (General Definitions) and, for greater certainty, does not include a branch of an enterprise of a non-Party;
public entity means a central bank or monetary authority of a Party, or any financial institution owned or controlled by a Party; for purposes of Chapter Fifteen (Competition Policy), a central bank or monetary authority of a Party, or any financial institution that performs a financial regulatory function and is owned or controlled by a Party, shall not be considered a designated monopoly or a state enterprise; and
self-regulatory organization means any non-governmental body, including any securities or futures exchange or market, clearing agency, or other organization or association, that exercises regulatory or supervisory authority over financial service suppliers or financial institutions, by statute or delegation from central, regional, or local governments or authorities; for purposes of Chapter Fifteen (Competition Policy), a self-regulatory organization shall not be considered a designated monopoly.
Chapter THIRTEEN. Telecommunications
Article 13.1. Scope of Application
1. This Chapter shall apply to:
(a) measures related to access to and use of public telecommunications networks and services;
(b) measures related to obligations of suppliers of public telecommunications networks and services;
(c) other measures related to public telecommunications networks or services; and
(d) measures related to the supply of value-added services. (1)
2. Except to ensure that enterprises operating broadcast stations and cable systems have
continued access to and use of public telecommunications networks and services, as set out in Article 13.3, this Chapter shall not apply to any measure related to broadcast or cable distribution of radio or television programming.
3. Nothing in this Chapter shall be construed to:
(a) require a Party, or require a Party to compel any enterprise, to establish, construct, acquire, lease, operate, or provide telecommunications networks or services not offered to the public generally;
(b) require a Party to compel any enterprise exclusively engaged in the broadcast or cable distribution of radio or television programming to make available its broadcast or cable facilities as a public telecommunications network;
(c) require a Party to authorize an enterprise of the other Party to establish, construct, acquire, lease, operate, or supply telecommunications networks or services, other than as specifically provided in this Agreement; or
(d) prevent a Party from prohibiting persons operating private networks from using their networks to supply public telecommunications networks or services to third persons.
Article 13.2. Relation to other Chapters
In the event of any inconsistency between this Chapter and another Chapter, this Chapter shall prevail to the extent of the inconsistency.
Section A. ACCESS TO AND USE OF PUBLIC TELECOMMUNICATIONS NETWORKS AND SERVICES
Article 13.3. Access to and Use of Public Telecommunications Networks and Services (2)
1. Each Party shall ensure that service suppliers of the other Party have access to and use of any public telecommunications network and service, including leased circuits, offered in its territory or across its borders, on reasonable and non-discriminatory terms and conditions, including as set out in paragraphs 2 through 6.
2. Each Party shall ensure that service suppliers of the other Party are permitted to:
(a) purchase or lease, and attach terminal or other equipment that interfaces with a public telecommunications network;
(b) interconnect privately leased or owned circuits with public telecommunications networks and services in its territory or with circuits leased or owned by another service supplier;
(c) perform switching, signaling, and processing functions;
(d) use operating protocols of their choice, other than as necessary to ensure the availability of telecommunications networks and services to the public generally; and
(e) provide services to individual or multiple end-users over any leased or owned circuits.
3. Each Party shall ensure that service suppliers of the other Party may use public
telecommunications networks and services for the movement of information in its territory or across its borders, including for intra-corporate communications, and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party.
4. Notwithstanding paragraph 3, a Party may take such measures as are necessary to ensure the security and confidentiality of messages, or to protect the privacy of personal data of end-users, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks and services, other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks and services, in particular their ability to make their networks or services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services.
6. Provided that conditions for access to and use of public telecommunications networks and services satisfy the criteria set out in paragraph 5, such conditions may include:
(a) a requirement to use specified technical interfaces, including interface protocols, for interconnection with such networks or services;
(b) requirements, where necessary, for the inter-operability of such networks and services;
(c) type approval of terminal or other equipment which interfaces with the network and technical requirements related to the attachment of such equipment to such networks; or
(d) notification, registration, and licensing.
Section B. ADDITIONAL OBLIGATIONS RELATED TO MAJOR SUPPLIERS OF PUBLIC TELECOMMUNICATIONS SERVICES
Article 13.4. Treatment by Major Suppliers
Each Party shall ensure that a major supplier in its territory accords suppliers of public telecommunications services of the other Party treatment no less favorable than such major supplier accords to its subsidiaries, its affiliates, or any non-affiliated service suppliers regarding:
(a) the availability, provisioning, rates, or quality of like public telecommunications networks or services; and
(b) the availability of technical interfaces necessary for interconnection.
Article 13.5. Competitive Safeguards
1. Each Party shall maintain appropriate measures for purposes of preventing suppliers of public telecommunications services that, alone or together, are a major supplier in its territory from engaging in or continuing anti-competitive practices.
2. The anti-competitive practices referred to in paragraph 1 include in particular: (a) engaging in anti-competitive cross-subsidization;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available, in a timely manner, to suppliers of public telecommunications networks or services, technical information on essential facilities and commercially relevant information that are necessary for them to provide services.
Article 13.6. Interconnection
General Terms and Conditions
1. Each Party shall ensure that a major supplier is required to provide interconnection at any technically feasible point in the network. Such interconnection is provided:
(a) under non-discriminatory terms, conditions, including technical standards and specifications, and rates, and of a quality no less favorable than that provided for its own like services, for like services of non-affiliated service suppliers, or for like services of its subsidiaries or other affiliates;
(b) in a timely manner, on terms and conditions, including technical standards and specifications, and at cost-oriented rates, that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the service to be provided; and
(c) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
Public Availability of the Procedures for Interconnection Negotiations
2. Each Party shall make publicly available the applicable procedures for interconnection negotiations with a major supplier in its territory.
Transparency of Interconnection Arrangements
3. Each Party shall ensure that a major supplier in its territory makes publicly available either its interconnection agreements or a reference interconnection offer.
Section C. OTHER MEASURES
Article 13.7. Independent Regulatory Bodies
Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of public telecommunications networks or services. Each Party shall ensure that its regulatory decisions and procedures are impartial with respect to all market participants.
Article 13.8. Universal Service
1. Each Party has the right to define the kind of universal service obligations that it wishes to maintain.
2. Each Party shall administer any universal service obligation that it maintains in a transparent, non-discriminatory, and competitively neutral manner and shall ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined.
Article 13.9. Licensing Process
1. When a Party requires a supplier of public telecommunications networks or services to have a license, concession, permit, registration, or other type of authorization, the Party shall make publicly available:
(a) all the licensing or authorization criteria and procedures it applies;
(b) the period of time it normally requires to reach a decision concerning an application for a license, concession, permit, registration, or other type of authorization; and